Delaware House Bill 346

Summary

Delaware House Bill 346 would make it illegal to knowingly view or possess any visual depiction of a live animal being intentionally tortured or killed, when the torture or killing depicted in the image is illegal under Delaware or federal law. The image must also be deemed to lack serious scientific, journalistic or political value when applying contemporary community standards.

Status

The bill died in the House Committee on Judiciary.

Analysis

The bill is very similar to a federal law recently struck down by the U.S. Supreme Court in United States v. Stevens. The federal law banned the creation, sale or possession with the intent to distribute images of cruelty to actual animals, if the act of cruelty was illegal where the image was created, sold or possessed with the intent to distribute. The law also included a safe harbor for material with serious religious, scientific, political, educational, journalistic, historical or artistic value.

The Court declined to create a new exception to the First Amendment for images of illegal cruelty to animals. The Court then reviewed the law under traditional strict scrutiny analysis. They first considered the substantial breadth of the law. The Court acknowledged that reach of an obscenity law could be limited by exempting “serious” material, but that such a safe harbor could not be used as a pre-condition for other categories of speech, and therefore cannot be used to limit this law. They then ruled that the law is unconstitutional as substantially overbroad and that it violates the First Amendment.

There is no language in the Stevens opinion that would suggest that this bill is constitutional where the federal law was not. H.B. 346 seeks to criminalize the same types of images of illegal animal cruelty while allowing a safe harbor for “serious” material. In fact, this bill may also be unconstitutional in that it is limited to possession of such images, rather than their sale or creation. The Supreme Court has ruled that even where the government may ban the creation or sale of material as obscene, they may not prosecute individuals for its mere possession.